DeMott Rethinks the First Restatement of Agency

This paper originated with a presentation at the 2007 AALS meeting on a panel: “Did the First Restatements Implement a Reform Agenda?” The panel, which examined several of the first Restatements, was stimulated by Professor Natalie Hull's thesis that the founders of the American Law Institute, which produced the Restatements, were progressive legal academics who saw the ALI as a potential vehicle for legal reform. In my assessment, although the first Restatement of Agency provided a coherent and systematic account of its subject–no small accomplishment–its agenda could not fairly be characterized as reformist in a conventional sense. Indeed, the Reporters for Agency explicitly defended the inclusion of a number of common law rules explicitly characterized as unsound, outdated, even “barbarous” and “shocking” in extreme instances.

My paper provides an account of how this happened. I begin with the Reporters–Floyd Mechem and Warren Seavey–the characters most central to the Agency Restatement. Their professional and personal biographies help understand what Mechem and Seavey understood their work to be. This was, first and foremost, to construct and articulate a coherent account of agency doctrine and thereby establish their subject's position as a subject of legal scholarship. I also examine contributions from others who worked to produce the first Restatement: the project's Advisers, the ALI's first Director and its Council, and culminating debates on the project at ALI Annual Meetings. The prospect that the Agency Restatement would serve as a vehicle for substantive legal reform was substantially reduced by an unquestioned and narrow understanding of what should count as “the law” and by a circumscribed definition of the proper function of Restatements. The project began in 1923 and concluded with approval of a proposed final draft at the ALI's 1933 Annual Meeting. Although I rely for the most part on published sources (which include minutes of Council meetings from the ALI's early days), my account was also shaped by reviewing a set of unpublished minutes from meetings among the Reporters, their Advisers, and the ALI's Director.